Is Prosecutorial Discretion Leading to Fewer Deportation Cases?

Are the prosecutorial discretion guidelines issued by the Obama administration last year having an effect on the number of deportation cases that the administration is pursuing?

A new Syracuse University report suggests yes, federal immigration officials say no, and some lawmakers are calling “amnesty” nonetheless.
First, the report: Issued in recent days by the Transactional Records Access Clearinghouse at Syracuse University, the number of deportation proceedings begun in the nation’s immigration courts between October and December of last year (the first quarter of federal fiscal year 2012) “fell sharply to only 39,331 — down 33 percent from 58,639 filings recorded the previous quarter,” a drop of more than 10,000 cases filed. The report notes that since filings are typically lower at that time of year, the numbers were adjusted for seasonal drop-off. It continues:

This substantial drop may have been caused by the steps needed to implement the June 17, 2011 agency directive on prosecutorial discretion or as the indirect effect of the review announced August 18, 2011 by the Administration of all pending Immigration Court cases. The objective of these twin initiatives was to better target enforcement resources on high priority cases.

Not necessarily the case, say federal immigration officials, for whom a number of recent Syracuse University reports have been a thorn in the side. As with other recent reports from TRAC, the report uses data from the Executive Office for Immigration Review, which administers the immigration courts, and this is “essentially incomplete data,” said Gillian Christensen, a spokeswoman for U.S. Immigration and Customs Enforcement in Washington D.C.

According to Christensen, “their data is only focused on the initiation of formal removal proceedings in the Executive Office for Immigration Review. It ignores the fact that we regularly remove individuals without going through formal proceedings: voluntary return, voluntary deportation, reinstatement of old removal orders. We can voluntarily return someone without going through the formal initiation of proceedings.”

The Obama administration has said that it counts voluntary removals in its overall record-breaking deportation tallies. The makeup of overall removals in any given period can shift, Christensen said, making a quarter-by-quarter comparison difficult to read.

As for the prosecutorial discretion reviews of roughly 300,000 deportation cases to be conducted in the nation’s immigration courts, as announced last summer by the Obama administration, a pilot program began in two cities, Denver and Baltimore, last November. The pilot lasted six weeks, with a little more than 1,600 cases recommended for closure once it concluded last month. But these were already pending deportation cases, which wouldn’t factor into a dip in new cases filed.

Experts have said it’s too soon to see a trend, but some lawmakers have taken the data to heart. On the House Judiciary Committee website, committee chair Lamar Smith, a Texas Republican, said in a statement linking to the TRAC report: “Last quarter’s data confirms what we knew all along: President Obama is recklessly determined to grant backdoor amnesty to thousands of illegal immigrants.”

Also in dispute is whether ICE, as the report points out, is focusing less on criminals. The Obama administration has stated that its goal is to deport criminals, with less of an emphasis on immigrants with clean records. In a similar report last year, TRAC pointed to fewer criminal cases in the immigration courts; ICE’s reply was that those deportation cases in which a crime is pointed out as part of the case make up just a portion of criminal removals overall, since many people with criminal records are removed administratively. From an ICE statement today:

When removing individuals who have been convicted of a crime and who have no lawful immigration status, like those who illegally cross our border or overstay their visa, ICE is not required to file charging documents in immigration court asserting criminal grounds of removal.

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